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EU Commission Sticks to Flawed Copyright Repression

Posted on23 May 201110 June 2011

Paris, May 23rd, 2011 – Tomorrow, the EU Commission will release its “intellectual property rights strategy” [Update: See the IPR strategy on the Commission’s website]. Unsurprisingly, leaks show that the Commission will call for preventing copyright infringements on the Internet “at the source”, by forcing Internet companies such as hosters and access providers to obey the entertainment industries. In practice, turning these actors into a copyright police comes down to establishing a censorship regime, paving the way for dangerous breaches of fundamental rights.

For years, policy-makers have been implementing repressive schemes to fight not-for-profit exchanges of copyrighted works by individuals over the Internet. Ever since they lost control over the distribution channels of cultural works, the biggest entertainment majors have relentlessly explained that the whole creative economy is going bankrupt. But an evidence-based approach to the filesharing phenomenon shows that the negative impact of so-called piracy is a myth: those who exchange cultural works on the Internet are fans, not free-riders. Even the study commissioned by the infamous HADOPI – the agency in charge of implementing the three-strike scheme in France – showed that people who share cultural works online declare spending more on cultural goods than consumers who do not1See p. 45 of the document: http://www.hadopi.fr/download/hadopiT0.pdf (in French). This is just a recent example in a long series of such studies. Several other independent studies – including some from the OECD, IPSOS, the Canadian Department of Industry and other academic as well as governmental sources – show a neutral or positive economic impact of file-sharing on the creative sector. See an index of these studies: http://lqdn.fr/p2pstudies. Similarly, live performances are booming and ticket sales for movie theatres are at all-time highs2See the example of France, http://www.lexpress.fr/culture/cinema/2010-annee-record-pour-les-salles-obscures_963022.html (in French). Sharers are actually the creative sector’s best customers.

“The sharing of culture between individuals is a positive force for the creative economy, cultural diversity and access to culture. Even though facilitating the commercial distribution of creative works on the Internet is positive, it can not be done at the expense of criminalizing a practice which has obvious benefits, if one dares consider the evidence.” says Philippe Aigrain, co-founder of La Quadrature du Net.

Although the Commission explains that the IPRED directive will be revised to step up the repression of online infringements, it is hard to see a principle-basis. It is all the more worrying that, as announced by Internal Market Commissioner Michel Barnier, what the Commission envisions is extra-judicial enforcement of copyright at the core of the Internet’s architecture. Following Nicolas Sarkozy’s realization that measures weighing on Internet users are political and technical failures3In early 2010, Nicolas Sarkozy said that: “Hadopi must develop more modern solutions to protect creative works, and to hold a vigilant and permanent dialogue with the web’s actors. The more we can automatically de-pollute networks and servers of all sources of piracy, the less it will be necessary to take measures against Internet users. We must therefore experiment without delay filtering measures.” See: http://www.elysee.fr/download/?mode=press&filename=100107-discours-Voeux_culture.pdf (in French), the Commission is trying to compel Internet actors to police their services and networks4The Commission explains that the anti-sharing IPRED directive will soon be revised to “tackle the infringements at their source and, to that end, foster cooperation of intermediaries, such as Internet service providers”, as we explain in our response to the consultation of the anti-sharing IPRED directive. This would turn Internet companies into a private copyright police and justice, violating the right to a fair trial, freedom of expression and privacy5By doing so, the Commission would violate the e-Commerce directive, which was adopted in 2000 to promote the development of the digital economy while fostering freedom of expression online, and which shelters Internet actors from having to police the Internet..

“Like the United States with the PROTECT IP Act, the goal of EU authorities is to use technical means to block communications and restrict users’ access in the name of enforcing an obsolete vision of copyright. Such a scheme would lead to the establishment of a censorship infrastructure by online actors, technically similar to those currently used in authoritarian states. In the process, freedom of communication, privacy as well as the right to a fair trial would inevitably be undermined.”, says Jérémie Zimmermann, spokesperson for La Quadrature du Net.

“This shift towards an increased role of Internet platforms in preventing the sharing of cultural works online is alarming. It comes down to transforming the very architecture of the Internet for the sole benefit of a few corporate players. Their harmful influence on policy-making is keeping us away from a crucial reflection on how to fund the creative economy of the 21st century.”, concludes Zimmermann.

See p. 45 of the document: http://www.hadopi.fr/download/hadopiT0.pdf (in French). This is just a recent example in a long series of such studies. Several other independent studies – including some from the OECD, IPSOS, the Canadian Department of Industry and other academic as well as governmental sources – show a neutral or positive economic impact of file-sharing on the creative sector. See an index of these studies: http://lqdn.fr/p2pstudies

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See the example of France, http://www.lexpress.fr/culture/cinema/2010-annee-record-pour-les-salles-obscures_963022.html (in French)

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In early 2010, Nicolas Sarkozy said that: “Hadopi must develop more modern solutions to protect creative works, and to hold a vigilant and permanent dialogue with the web’s actors. The more we can automatically de-pollute networks and servers of all sources of piracy, the less it will be necessary to take measures against Internet users. We must therefore experiment without delay filtering measures.” See: http://www.elysee.fr/download/?mode=press&filename=100107-discours-Voeux_culture.pdf (in French)

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The Commission explains that the anti-sharing IPRED directive will soon be revised to “tackle the infringements at their source and, to that end, foster cooperation of intermediaries, such as Internet service providers”

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By doing so, the Commission would violate the e-Commerce directive, which was adopted in 2000 to promote the development of the digital economy while fostering freedom of expression online, and which shelters Internet actors from having to police the Internet.